Court of Appeal warns of consequences for overly long bundles and skeletons

Overly long skeleton arguments in the firing line

The Court of Appeal has hit out forcefully at unnecessarily long bundles and skeleton arguments that are anything but.

Lord Justice Aikens warned that “a wholesale failure to comply with the practice direction on written submissions and, I would add, failure to use common sense in working out more precisely what bundles are needed for the appeal, may well lead to strict adverse costs orders”.

Caldero Trading Ltd v Leibson Corporation Ltd & Ors [2014] EWCA Civ 935 was an appeal against an order made in the wake of an unfair prejudice petition presented under section 994 of the Companies Act 2006.

Lord Justice Rimer recounted that the appeal was listed for three days, but in the event the argument lasted for only about four hours.

“We were presented with some 17 lever arch files of documents and authorities. Only one authority was actually cited to us and I doubt if we were referred to more than about 24 of the thousands of pages that were copied. I regarded the skeleton arguments on both sides as too long, the appellants’ (which included a schedule and four appendices) occupying 72 pages, and Caldero’s (with no schedule, but also four appendices) 67 pages.”

He pointed out that the requirements of paragraph 31 of practice direction 52C are that skeleton arguments should not “normally” exceed 25 pages; though Caldero defended the length of its skeleton by saying that this was not a ‘normal’ appeal, the judge said he still regarded both skeletons as having been too long.

“It is a travesty to call such written submissions ‘skeleton’ arguments,” he said.

Aikens LJ endorsed the comments. “There are far too many appeals where the parties simply copy all the trial bundles without thinking out what is actually needed for the appeal hearing,” he complained.

“This is not only costly and wasteful but it demonstrates that the parties have not actually thought about the issues on the appeal and how to deal with them.”

Not only were very few documents in the bundles actually referred to, but there was also no attempt to produce a ‘core bundle’, “which at least would have helped”, he said.

Aikens LJ continued: “The authorities bundles were also produced without any proper thought as to what actually might be needed in an appeal on fact, not a point of law. The so-called ‘skeletons’ of both sides were disgracefully long and showed a disdainful regard for CPR PD 52C paragraph 31.

“In my view there was nothing in this appeal that required that the ‘normal’ length of 25 pages to be exceeded by either side. It also seems that the parties had not given sufficiently serious thought as to how long the appeal would take. It is the duty of both parties to consider the time estimate, not just the appellants.”

Such failures “may well lead to strict adverse costs orders”, and he said this is “something we shall have to consider carefully in this case”.

Aikens LJ referred to a previous judgment of his, in which he noted “somewhat ruefully” that the punishment for prolix pleadings imposed on the miscreant in the 1596 case of Mylward v Weldon may no longer be available today – they were hung around his shoulders and he was led around the courts in shame.

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